CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 janvier 2018

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FRANCE   (Applications nos. 48151/11 and 77769/13)             JUDGMENT     This version was rectified on 29 May 2018 under Rule 81 of the Rules of   the   Court     STRASBOURG   18 January 2018   FINAL   18/04/2018     This judgment has become final under Article   44 §   2 of the Convention. It may be subject to editorial revision.   In the case of National Federation of Sportspersons’ Associations and Unions (FNASS) and Others v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Erik Møse,   André Potocki,   Yonko Grozev,   Síofra O’Leary,   Gabriele Kucsko-Stadlmayer,   Lәtif Hüseynov, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 12 December 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos. 48151/11 and 77769/13) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 July 2011 and 6 December 2013 respectively. The   applicants in application no. 48151/11 are five legal entities registered in France (see paragraph 6 below) and 99 individuals, including one Georgian national (see Annex). The applicant in application no. 77769/13 is Ms   Jeannie Longo. 2.     The applicants in application no. 48151/11 were represented by Mr R.   Palao, a lawyer practising in Avignon. Four of them (FNASS, the UNPF, Mr Da Silva and Mr Kerckhof) were represented by Mr L. Misson, a lawyer practising in Liège (Belgium). Ms Longo was represented by Ms C. Ravaz, a lawyer practising in Toulon. The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry of European and Foreign Affairs. 3.     The applicants in application no. 48151/11 are sports unions and professional athletes. They alleged that the requirement as to whereabouts, imposed on a “testing pool” of athletes designated by the national anti ‑ doping agency for the purposes of carrying out unannounced doping tests, infringed their rights under Article 8 of the Convention and Article 2 of Protocol No. 4. Ms Longo alleged a violation of Article 8 of the Convention. 4.     On 26 June 2013 the Government were given notice of the complaints lodged by the applicants in application no. 48151/11 under Article 8 and Article 2 of Protocol No. 4. The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The Georgian Government were informed of their right to take part in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1) but did not reply. On 18   June 2014 the Government were given notice of the complaint under Article 8 lodged by the applicant in application no. 77769/13, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3. In particular, the part of the application lodged by Mr Ciprelli, the applicant’s husband, who had also applied to the Court on 6 December 2013, was declared inadmissible under the provision of the Rules of Court cited above. 5.     On 8 October 2013 the World Anti-Doping Agency (hereafter “WADA”) was given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Application no. 48151/11 6.     The applicants are the National Federation of Sportspersons’ Associations and Unions ( Fédération nationale des associations et syndicats de sportifs – hereafter “FNASS”), the National Rugby Players’ Union ( Syndicat national des joueurs de rugby – hereafter “Provale”), the National Professional Footballers’ Union ( Union nationale des footballeurs professionnels – hereafter “the UNFP”), the Professional Handball Players’ Association ( Association des joueurs professionnels de handball – hereafter “the AJPH”), and the National Basketball Players’ Union ( Syndicat national des basketteurs – hereafter “the SNB”). FNASS, which was established in 1992, is a federation of trade unions representing professional athletes, which today comprises the unions representing track and field athletes (SAF), basketball players (SNB), cyclists (UNCP), footballers (UNFP), handball players (AJPH) and rugby players (Provale). It represents around 3,500 professional athletes in France. Its aim is to defend the individual and collective rights and the pecuniary and non-pecuniary interests of professional athletes in all disciplines. The remaining 99 applicants are professional handball, football, rugby and basketball players. 1.     The facts set out in the application form 7.     On 14 April 2010 the Government issued Order no. 2010-379 on athletes’ health, bringing the Sports Code into line with the principles of the World Anti-Doping Code (hereafter “the Order of 14 April 2010”). The Order was aimed, firstly, at bringing the provisions of the Sports Code into line with the most recent version of the World Anti-Doping Code (hereafter “the WADC”), which entered into force on 1 January 2009 (see paragraph 45 below) following the Third World Conference on Doping in Sport held in Madrid in November 2007 (Title I) and, secondly, to clarify certain provisions of the Sports Code concerning athletes’ health and efforts to combat doping (Title II). The provisions of the Order were ratified by Law no. 2012-158 of 1 February 2012 on strengthening sports ethics and athletes’ rights. They were codified in Articles L. 232-2 et seq. of the Sports Code, which has undergone several amendments since. 8.     Article 3 of the Order (Article L. 232-5 of the Sports Code) set forth the tasks and powers of the French Anti-Doping Agency ( Agence française de lutte contre le dopage – hereafter “the AFLD”) and provided as follows: “I. – In paragraph I of Article L. 232-5 of the Code, sub-paragraphs 1 to 13 shall be replaced by the following provisions: (1) It shall define an annual programme of tests; ... (3)     In the case of athletes subject to the whereabouts requirement referred to in Article L. 232-15, it shall carry out tests subject to the conditions laid down in Articles L. 232-12 to L. 232-16: (a)     during sporting events organised by federations approved or licensed by the federations to which powers have been delegated; (b)     during the international sporting events defined in Article L. 230-2 with the agreement of the competent international body or, failing that, the World Anti-Doping Agency; (c)     during periods of training in preparation for the sporting events referred to in Article L. 230-3; (d)     independently of the sporting events referred to in Article L. 230-3 and the periods of training in preparation for them; ...” 9.     Article 6 of the Order (Article L. 232-13-1 of the Sports Code, see paragraph 63 below) provided, in particular, that individualised anti-doping testing of athletes included in the testing pool could be carried out at training and sporting venues, but also “at any location chosen with the athlete’s agreement at which the test can be carried out in compliance with the athlete’s right to respect for his or her privacy, including, at his or her request, at home.” 10.     Article 7 of the Order added the following: “Article L. 232-15 of the Code shall read as follows: The athletes in the testing pool, designated for a period of one year by the French Anti-Doping Agency, shall be required to provide accurate and up-to-date information on their whereabouts for the purposes of conducting the tests referred to in Article   L.   232-5. The athletes concerned shall be: (1)       those whose names are on the list of elite athletes or the list of promising young athletes ( Espoir ) within the meaning of the present Code, or athletes whose names have featured on one of those lists for at least one of the past three years; (2)     professional athletes who are licensed by the approved federations or who have been engaged in professional sport for at least one of the past three years; (3)     athletes who have been the subject of a disciplinary sanction on the basis of Articles L. 232-9, L. 232-10 or L. 232-17 during the past three years. The information concerned may be computerised by the Agency with a view to organising tests. Computerised processing of information concerning athletes’ whereabouts is authorised by a decision of the Agency’s Board, taken after consultation with the National Commission on Data Processing and Civil Liberties.” 11.     In an application registered on 1 June 2010 some of the applicants (unions and twenty-four individual applicants), together with other athletes, requested the Conseil d’État to set aside the Order, and in particular Articles 3 and 7 thereof (see paragraphs 8 and 10 above). With regard to the whereabouts requirement provided for in those Articles, they complained of a “particularly intrusive” testing system which compelled athletes in the testing pool to provide the AFLD with information concerning their places of residence, training and competition so that they could be located at any time, and to undergo immediate tests ordered on a discretionary basis and without advance notice. They complained in particular of the fact that the tests could be carried out independently of sporting events and outside training periods, that is, during periods when athletes were no longer at the disposal of their employer but were on holiday, resting or on sick leave or leave following an occupational injury. They argued that Article 3 infringed their freedom of movement by requiring them to give notice of their whereabouts on an ongoing basis, including during non-professional activities, and also infringed their right to a normal family life and their individual freedom as athletes. In their view, the unconditional implementation of Article 3(I)(3)(d) of the Order, allowing tests to be carried out independently of sporting events and outside training periods, meant that between 6 a.m. and 9 p.m. (the testing period laid down by Article L. 232-14 of the Sports Code, see paragraph 64 below) the athletes in the testing pool faced the permanent prospect of physically intrusive tests. This entailed systematically giving advance notice of their schedule, in breach of the right to establish relationships with their peers and the right to the peaceful enjoyment of their private lives. Lastly, the applicants complained of a breach of the principle of equality, as the whereabouts requirement for the purposes of anti-doping tests was confined to athletes included in the testing pool. 12.     In a judgment of 24 February 2011 the Conseil d’État rejected the application in the following terms: “... As regards Articles 3 and 7 of the impugned Order: These provisions provide a strict framework governing the locations where AFLD testing of athletes in the ‘testing pool’ may take place, and the period during which such tests may be carried out. They require the athletes in question, in view of the demands of efforts to combat doping, to provide accurate and up-to-date information on their whereabouts for the purposes of organising tests, including unannounced tests, with a view to the effective detection of the use of doping substances, which can be detected only for a short time after being taken despite having lasting effects. Hence, Articles 3 and 7 of the impugned order, which do not hamper athletes’ freedom of movement, interfere with their right to respect for their private and family life as guaranteed by Article 8, and with individual freedoms, only to the extent that is necessary and proportionate to the general-interest aims pursued by efforts to combat doping, namely to protect athletes’ health and to ensure fair and ethical sporting competitions. In any event, the order under challenge also complies with the provisions of the International Convention against Doping in Sport, which do not have direct effect. The principle of equality does not prevent the regulatory authority from laying down different rules for different situations or from derogating from equality on general ‑ interest grounds, provided that, in both cases, the resulting difference in treatment is proportionate to the purpose of the rule establishing it. Athletes whose names feature on the list of elite sportsmen and women or the list of promising young athletes, which include amateur athletes and licensed professionals who may be required to notify their whereabouts with a view to anti-doping tests, are not in the same situation as other athletes, in view of the level at which they compete and the greater risk of doping such competition may entail. Likewise, athletes who have been the subject of disciplinary sanctions for doping during the past three years are not in the same situation as other athletes. Furthermore, athletes belonging to the ‘testing pool’ are not in the same situation as persons in other professions and may therefore be made subject to special doping control measures without the principle of equality being breached.” 2.     New information resulting from the parties’ observations (a)     Information provided by the Government 13.     In their initial and additional observations of 22 October 2013 and 17 February 2014 the Government provided the Court with the following information concerning the situation of the individual applicants with regard to the impugned legislation. (a)     Eight of the ninety-nine applicants had never been included in the AFLD testing pool (Mr Millo-Chluski, Mr Nallet, Mr Traille, Mr Mas, Mr Domingo, Mr Dusautoir, Mr Heymans and Mr Para). (b)     Of the twenty-four applicants who had participated in the domestic proceedings, none had belonged to the testing pool on the date on which the application was lodged with the Court. (c)     Eleven applicants who had not participated in the domestic proceedings had belonged to the testing pool on the date on which the application was lodged (Mr Da Silva, Mr Gomis, Mr Ho You Fat, Mr   Perquis, Mr Congre, Mr Coulibaly, Mr Cavalli, Mr Cabarry, Mr   Huget, Mr Honrubia and Mr Gharbi). According to the Government, these athletes had been included in the testing pool in September and October 2010. They had all undergone testing, some of them between two and eight times. Nine of them had been issued with one or two warnings. One (Mr Huget) had received three warnings, leading to the institution of disciplinary proceedings and to an administrative penalty which he had not contested before the Conseil d’État . Of the eleven aforementioned applicants, six had had their inclusion in the testing pool renewed following two decisions of the AFLD Board of 12 and 25   September 2013. Mr Coulibaly, Mr Cavalli, Mr Gomis, Mr Cabarry and Mr Huget had been removed from the list. (d)     With regard to Mr Kerckhof, the Government stated that he had been included in the testing pool on 7 November 2009 and had been kept on the list for a further year from 17 September 2010. During that time he had been found to be in breach of the whereabouts requirement on one occasion. 14.     In a letter of 22 August 2016 the Government informed the Court that, by decisions of the AFLD of 4 September and 22 October 2014, five of the six athletes still belonging to the AFLD’s testing pool in 2013 (Mr   Honrubia, Mr Perquis, Mr Congre, Mr Da Silva and Mr Gharbi, see paragraph 13 (c) above) had been removed from the list at their request, on the grounds that their names had been on it for four years. (b)     Information provided by the applicants 15.     In their observations in reply of 3 December 2013 the eight applicants who were not in the AFLD testing pool (see paragraph 13 (a) above) stated that they were in the testing pool of the International Rugby Board (IRB). They stated that they were required to declare their whereabouts in France on the same basis as the applicants included in the AFLD testing pool and that the AFLD, which had subsidiary powers in that regard, was empowered to impose sanctions on them. 16.     The twenty-four applicants who had applied to the Conseil d’État also reported as follows on their situation at the time of lodging of the application on 23 July 2011. (a)     Four of them (Mr Pierre, Mr Sissokho, Mr Psaume and Mr Talmont) had been included in the testing pool in 2010, and had remained in it for a further twelve months from 11 June 2010. They produced a letter from the AFLD dated 17 June 2011 asking the President of the Professional Football League to send a list of players by 2 September 2011 who should be included or retained in the testing pool. However, they did not produce the updated list of athletes who had been retained in the pool. (b)     A further four (Mr Busselier, Mr Ternel, Mr Kiour and Mr Haon) had been included in the testing pool in 2009 or 2010 and had been retained for another twelve months from 23 September 2010. In a letter dated 23 September 2010 to the President of the National Handball League and the President of the French Handball Federation, forwarding the updated list of athletes in the testing pool, the President of the AFLD pointed out that the athletes in question were required to declare their whereabouts every day in accordance with decision no. 54 of 18 October 2007 (see paragraphs 69 and 70 below). (c)     A further thirteen applicants who had been included in the testing pool in 2009 submitted that they had been included or retained in the pool on 11 June 2010 for a minimum twelve-month period (Mr Strunc, Mr Soliman, Mr Dondon, Mr Jeanneau, Mr Melody, Mr Kerckhof, Mr   Linehan, Mr Maynier, Mr Ouattara, Mr Tsagarakis, Mr Moncade, Mr Pons and Mr Toffin). They produced a letter from the AFLD to the President of the National Basketball League dated 11 June 2010, asking the latter to send a list of players by 30 August 2010 who should be included or retained in the testing pool. The applicants did not furnish the updated list of the athletes retained in the testing pool (however, as regards Mr Kerckhof, see the Government’s observations at paragraph 13 (d) above). (d)     Three applicants had been included in the pool in 2009 for a twelve ‑ month period (Mr Ayed, Mr Guilbert and Mr Dearlove). 17.     The remaining applicants stated that they had been included in the testing pool following the Conseil d’État ruling and had joined the application to the Court in their capacity as union members. They did not provide any documents demonstrating that they belonged to the testing pool. 18.     In additional observations of 5 December 2013 Mr Da Silva’s lawyer informed the Court that his client had appealed in the following terms to the President of the AFLD against the decision to retain him in the testing pool for an eighteen-month period from 26 September 2013:   “... I was first included in the testing pool on 20 September 2010, in other words a full three years ago, and you have just retained my name on the list until 2015 at least, making a total of five years! This is completely unacceptable and disproportionate. I have complied with all the obligations entailed in belonging to the testing pool. This has affected my family life and had a considerable impact on my children, who often see inspectors turn up on my doorstep at 6 a.m. I have always provided details of my whereabouts in good time, have never missed a test and, in three years, have never received the slightest warning, still less tested positive for any banned substance ... Can you kindly explain [the] scientific reasons for keeping me in the testing pool? Does the fact that I’m nearing the end of my career make me a potential cheat? ... Keeping me in the testing pool for another 18 months stigmatises me in the eyes of my teammates as a potential cheat and is not acceptable. I agree that it’s necessary to tackle doping in sport, but not to the detriment of MY life. ... I am therefore asking you to review your position on my inclusion in the testing pool: keeping the same person in the pool for five consecutive years is not an effective way of tackling doping.” B.     Application no. 77769/13 19.     The applicant, who was born in 1958, is a French national. She is an international racing cyclist who is on the list of elite athletes and has set numerous world records. She stated that she had undergone more than 1,200 anti-doping tests in the course of her career. She maintained that she had undergone unannounced tests abroad (in the United States, China, Switzerland and Australia) as well as regular tests at World Championship and Olympic events. 20.     By a decision of the AFLD’s director of testing of 14 March 2008 the applicant was designated as one of the athletes in the testing pool and subject to individualised testing. At that time athletes could be included in the testing pool for an indeterminate period. 21.     The Order of 14 April 2010, cited above (see paragraph 10), laid down a one-year time-limit for inclusion in the pool of athletes to be tested. 22.     By a decision of 10 June 2010 taken under the transitional rules, the applicant was re-registered as belonging to the testing pool. 23.     In 2011, following three failures to comply with the rules on whereabouts, the applicant gave evidence before a disciplinary board of the French Cycling Federation. She was cleared of misconduct on the grounds that, at the time of the most recent failure to comply, in the United States in June 2011, she had no longer been in the testing pool and had thus no longer been liable for testing. 24.     In a letter of 20 December 2011 the AFLD invited the applicant to submit observations on her possible re-inclusion in the testing pool. In a letter, and subsequently during an interview with the President of the AFLD at which her lawyer was present, the applicant expressed her objections. She argued, among other things, that she was included in the testing pool of the Union Cycliste Internationale (UCI). In an email of 16 March 2012 the UCI informed the AFLD that the applicant was no longer in the UCI testing pool. 25.     In the meantime, on 10 February 2012, the applicant’s husband and coach was placed under investigation for importing prohibited goods, infringements of the regulations on the trading and use of poisonous substances, and importing doping substances without duly substantiated medical reasons. 26.     On 19 March 2012 the AFLD’s director of testing included the applicant in the testing pool. She lodged an application for reconsideration of that decision which was rejected on 22 May 2012. 27.     A few days previously the President of the French Cycling Federation ( Fédération française de cyclisme ) had contacted the President of the AFLD in connection with the applicant’s planned selection for the London Olympics, expressing regret at the time taken to include the applicant in the testing pool. 28.     In a decision taken on 27 September 2012, anticipating a Conseil d’État decision of 10 October 2012 (CE, no. 357097) to the effect that the director of testing did not have power to decide on the inclusion of an athlete in the testing pool (see paragraph 60 below), the AFLD Board, in order to prevent a legal vacuum that might adversely affect the implementation of checks on athletes’ whereabouts, approved the applicant’s inclusion in the testing pool. 29.     On 11 February 2013 the applicant and her husband brought proceedings in the Paris Criminal Court against the AFLD and three of its senior officials, accusing them of forwarding confidential information to the newspaper L’Équipe concerning the disciplinary proceedings instituted in 2011 and the ongoing criminal proceedings. 30.     In a letter dated 20 March 2013 the applicant contested the possibility of her renewed inclusion in the testing pool. 31.     By a decision of the AFLD Board of 28 March 2013 the applicant was again designated for inclusion in the “testing pool”. The decision contained the following reasoning: “She maintains ... that, since the entry into force of the Order of 14 April 2010, inclusion in the testing pool is possible only for a non-renewable one-year period. This argument has to be dismissed on the grounds that the provisions of the Sports Code concerning the whereabouts requirement must be read in the light of the ‘ principles ’ established by the World Anti-Doping Code ... Article 2.4 of the World Anti-Doping Code lays down the principle of checks on whereabouts and possible sanctions for violations of the resulting requirements in the event of three failures to comply ‘ within a twelve-month period ’. Moreover, limiting inclusion in the pool to a non-renewable one-year period could render the whereabouts checks ineffective; this is clearly not what the legislature intended.” 32.     On 28 December 2012 and 28 May 2013 the applicant lodged an application with the Conseil d’État for judicial review of the AFLD’s decisions of 27 September 2012 and 28 March 2013. She argued, in particular, that the rules on whereabouts and the unannounced testing of athletes in the testing pool were contrary to Article 8 of the Convention, and complained of being made subject to these rules for several years. 33.     In the meantime, in a memorial of 11 March 2013, the applicant requested the Conseil d’État to refer the following question to the Constitutional Council for a preliminary ruling on constitutionality with regard to the whereabouts requirement:   “Do the provisions of Articles L. 232-5-3 and L. 232-15 of the Sports Code establishing rules on the whereabouts and unannounced testing of athletes in the testing pool infringe the rights and freedoms guaranteed by the Constitution, in the light of Article 34 of the Constitution, Articles 2 and 4 of the Declaration of the Rights of Man and of the Citizen (freedom of movement, respect for private life and inviolability of the home), Article 66 of the Constitution (‘No one may be detained arbitrarily. The judicial authority, as the guardian of individual freedoms, shall ensure compliance with this principle ...’) and, finally, the principle of equality before the law?” 34.     In a decision of 29 May 2013 the Conseil d’État decided not to refer the question. It observed that the provisions complained of did not call into question the individual freedom which Article 66 of the Constitution placed under the protection of the ordinary courts (arbitrary detention), but fell within the jurisdiction of the administrative courts (see the position of the Court of Cassation on this issue at paragraph 73 below). 35.     In a judgment of 18 December 2013 the Conseil d’État joined the two applications of 28 December 2012 and 28 May 2013 and rejected them, after deciding not to refer a second question for a preliminary ruling on constitutionality. With regard to the alleged violation of the right to respect for private and family life, the Conseil d’État found as follows:   “... Firstly, the aforementioned provisions of the Sports Code relating to the obligations of athletes in the ‘testing pool’ do not infringe the right to freedom of movement or the equivalent right under Article 2 of Protocol No. 4 to the [Convention]. They lay down strict rules for determining the locations where testing of athletes in the ‘testing pool’ may be carried out and the periods and hours during which these tests may be conducted, and preclude the testing of athletes at home without their consent. The computer processing provided for in Article L. 232-15 for the purposes of organising tests is subject to the Law of 6 January 1978 on data processing, files and freedoms. While the arrangements thus defined place restrictions on athletes, notably by requiring them to provide accurate and up-to-date information on their whereabouts, the legislative provisions at issue are justified by the demands of efforts to combat doping. These entail, in particular, the ability to carry out unannounced tests in order effectively to detect the use of certain performance-enhancing drugs which can be detected only for a short time after being taken despite having more lasting effects. Hence, these provisions interfere with the right of the athletes concerned to respect for their private and family life, as guaranteed by Article 8 of the Convention, only to the extent that is necessary and proportionate to the general-interest aims pursued by efforts to combat doping, namely to protect athletes’ health and to ensure fair and ethical sporting competitions. ... Seventhly, although the provisions of L. 232-15 of the Sports Code, which provide that inclusion in the ‘testing pool’ is ‘for a period of one year’, require the [AFLD] to review periodically the composition of the testing pool, in order to ensure that the athletes are not subjected for unduly long periods and without specific reasons to the constraints linked to the requirement to provide accurate and up-to-date information on their whereabouts, those provisions do not have the purpose or effect of prohibiting the Agency from designating athletes who have already been included in the ‘testing pool’. Thus, the argument that Article L. 232-15 of itself prevents the Agency from designating an athlete previously included in the testing pool must be dismissed.” 36.     In a judgment delivered in 2014 the Paris Criminal Court dismissed the applicant’s action against the AFLD. 37.     By a decision of 9 April 2015 the AFLD removed the applicant from the list of athletes in the testing pool. 38.     In a judgment of 9 March 2017, following proceedings whose fairness he challenged before the Court (see paragraph 4 above), the applicant’s husband was sentenced to one year’s imprisonment, suspended, for importing erythropoietin (EPO). II.     RELEVANT INTERNATIONAL LAW AND PRACTICE A.     Council of Europe 39.     In 1967 the Committee of Ministers of the Council of Europe (“the Committee of Ministers”) adopted Resolution (67) 12 on the Doping of Athletes. This was followed in 1979, 1984 and 1988 by three recommendations, the most recent of which provided for the introduction of out-of-competition doping controls without prior notice (Recommendation No. R (88) 12 of the Committee of Ministers to member States on the Institution of Doping Controls without Warning outside Competitions). 40.     Subsequently, the Anti-Doping Convention (ETS No. 135, hereafter “the Council of Europe Convention”) was adopted by the Committee of Ministers on 16 November 1989. This convention, which is the European reference instrument, has been ratified by all the Council of Europe member States and by five non-member States (Australia, Belarus, Canada, Morocco and Tunisia). It lays down a number of common rules and standards on the basis of which the States Parties undertake to adopt the necessary harmonisation measures at national and international level in order to effectively combat doping in sport. A Monitoring Group was set up to monitor implementation of the Convention; its activities involve working with the World Anti-Doping Agency (WADA, established in 1999, see paragraph 45 below) and the international sports federations. There is also an Ad Hoc European Committee for the World Anti-Doping Agency (CAHAMA), which is a committee of experts responsible for coordinating the positions of the European countries acting on behalf of WADA. 41.     The preamble to the Council of Europe Convention highlights the ethical, moral and health-related aspects of efforts to combat doping:   “... Concerned by the growing use of doping agents and methods by sportsmen and sportswomen throughout sport and the consequences thereof for the health of participants and the future of sport. ... Aware that public authorities and the voluntary sports organisations have complementary responsibilities to combat doping in sport, notably to ensure the proper conduct, on the basis of the principle of fair play, of sports events and to protect the health of those that take part in them.” 42.     Point 3 of Article 7 of the Council of Europe Convention, entitled “Co-operation with sports organisations on measures to be taken by them”, reads as follows:   “Moreover, the Parties shall encourage their sports organisations: (a) to introduce, on an effective scale, doping controls not only at, but also without advance warning at any appropriate time outside, competitions, such controls to be conducted in a way which is equitable for all sportsmen and sportswomen and which include testing and retesting of persons selected, where appropriate, on a random basis ...” 43.     An Additional Protocol to the Council of Europe Convention was opened for signature on 12 September 2002 and entered into force on 1 April 2004. Its aim is to ensure the mutual recognition of doping controls and to reinforce the application of the Convention by means of a binding monitoring mechanism. 44.     At the fourteenth Council of Europe conference of Ministers responsible for sport, held on 29 November 2016, the Ministers adopted Resolution No. 1.1 on the role of the governments in addressing emerging challenges in the fight against doping in sport at national and international level. The resolution recognised the considerable challenges that had recently threatened the integrity of the international anti-doping system and observed the need to protect athletes against forced or encouraged doping schemes and to provide them with proper anti-doping education. It reaffirmed the Ministers’ support for WADA as the “global anti-doping regulator responsible for standard-setting and monitoring”, and called for a strengthening of WADA’s capacity. It welcomed the enhanced cooperation between the Council of Europe and WADA, and encouraged the Monitoring Group set up to monitor the implementation of the 1989 Convention to continue its standard-setting work in order to offer practical guidance to the States Parties on addressing emerging anti-doping issues in compliance with the Convention. The Ministers recognised that all anti-doping organisations must comply with the rules of good governance and the principle of proportionality, while respecting the fundamental rights of the individuals subjected to the anti-doping regulations, particularly when it came to data protection. B.     The World Anti-Doping Code and International Standards 45.     Anti-doping activities took on a new dimension in the early twenty ‑ first century. The World Anti-Doping Agency (hereafter “WADA”) was established in the wake of the scandal that followed the discovery at the 1998 Tour de France of large-scale trafficking in doping substances involving one team and several well-known cyclists. WADA is an independent international organisation and a foundation under Swiss private law. It is composed of and financed by the Olympic Movement and governments. It draws up the WADC, which was adopted in 2003 and came into force on 1 January 2004 and which was subsequently revised in 2009 and 2015. WADA coordinates and supervises worldwide anti-doping activities in all sporting disciplines, with a view to harmonised implementation of a common set of general principles at international level, encompassing the definition of doping offences, the list of prohibited substances, tests, sanctions and the system of exemptions for therapeutic use. 46.     The WADC is the instrument for bringing consistency to the anti ‑ doping practices of the different international federations and States. The introductory part spells out the “fundamental rationale for the World Anti-Doping Code” as follows: “Anti-doping programs seek to preserve what is intrinsically valuable about sport. This intrinsic value is often referred to as ‘the spirit of sport’. It is the essence of Olympism, the pursuit of human excellence through the dedicated perfection of each person’s natural talents. It is how we play true. The spirit of sport is the celebration of the human spirit, body and mind, and is reflected in values we find in and through sport, including: ethics, fair play and honesty, health, excellence in performance, character and education, fun and joy, teamwork, dedication and commitment, respect for rules and laws, respect for self and other participants, courage, community and solidarity. Doping is fundamentally contrary to the spirit of sport.” 47.     Article 2 of the WADC lists violations of the anti-doping rules, including the rule on athletes’ whereabouts, which at the relevant time read as follows:   “2.4 Violation of applicable requirements regarding Athlete availability for Out ‑ of ‑ Competition Testing, including failure to file required whereabouts information and missed tests which are declared based on rules which comply with the International Standard for Testing. Any combination of three missed tests and/or filing failures within an eighteen-month period as determined by Anti-Doping Organizations with jurisdiction over the Athlete shall constitute an anti-doping rule violation.” 48.     As worded at the relevant time, Article 5 of the WADC concerning testing specified that the national anti-doping organisations and international federations had jurisdiction in the matter. The relevant parts read as follows:   “5.1.1 [The above-mentioned organisations shall p]lan and conduct an effective number of In-Competition and Out-of-Competition tests on Athletes over whom they have jurisdiction, including but not limited to Athletes in their respective Registered Testing Pools. Each International Federation shall establish a Registered Testing Pool for International-Level Athletes in its sport, and each National Anti-Doping Organization shall establish a national Registered Testing Pool for Athletes who are present in that National Anti-Doping Organization’s country or who are nationals, residents, license-holders or members of sport organizations of that country. In accordance with Article 14.3, any Athlete included in a Registered Testing Pool shall be subject to the whereabouts requirements set out in the International Standard for Testing. 5.1.2 Except in exceptional circumstances all Out-of-Competition Testing shall be No Advance Notice . 5.1.3 Make Target Testing a priority. ...” 49.     In its wording at the time of the events, Article 10.3.3 of the WADC, entitled “Sanctions on Individuals”, provided as follows: “For violations of Article 2.4 (Whereabouts Filing Failures and/or Missed Tests), the period of Ineligibility shall be at a minimum one (1) year and at a maximum two (2) years based on the Athlete’s degree of fault.” 50.     Article 14.3, entitled “Athletes whereabouts information” provided at the relevant time that the International Federation and the national anti ‑ doping organisation were to coordinate the identification of athletes and the collecting of current location information and submit them to WADA. 51.     The revised version of the WADC, which entered into force on 1   January 2015, contained numerous amendments. Those of interest in the context of the present applications are as follows. Under the revised Article 2.4, a violation is established where three “whereabouts failures” occur within a twelve-month period (rather than eighteen months as previously, see paragraph 47 above). The revised Article 5.2 now provides that “[a]ny Athlete may be required to provide a Sample at any time and at any place” if, according to the comment on the Article by WADA itself, the anti ‑ doping organisation has a serious and specific suspicion that the athlete may be engaged in doping. 52.     The provisions of the WADC operate in conjunction with five international standards. Section 11 of the standard on testing (“Athlete whereabouts Requirements”), as in force at the material time, read, inter alia , as follows:   “11.1 Objective/general principles 11.1.1 It is recognised and accepted that (a) No Advance Notice Out-of-Competition Testing is at the core of effective Doping Control ; and (b) without accurate information as to an Athlete’s whereabouts, such Testing can be inefficient and often impossible. [11.1.1 Comment: Such recognition is the fundamental rationale underlying Code Article 2.4 and this Section 11 of the International Standard for Testing.] 11.1.2 Therefore, in addition to developing a Test Distribution Plan in accordance with Section 4 of this International Standard , each IF [International Federation] and NADO [National Anti-Doping Organisation] shall create a Registered Testing Pool of Athletes ... Athletes in a Registered Testing Pool shall be subject to and required to comply with the Athlete whereabouts requirements set out in this Section 11: see Code Article 14.3. 11.1.3 An Athlete in a Registered Testing Pool is required to make a quarterly Whereabouts Filing that provides accurate and complete information about the Athlete’s whereabouts during the forthcoming quarter, including identifying where he/she will be living, training and competing during that quarter, so that he/she can be located for Testing at any time during that quarter: see Clause 11.3. A failure to do so amounts to a Filing Failure and therefore a Whereabouts Failure for purposes of Code Article 2.4. 11.1.4 An Athlete in a Registered Testing Pool is also required to specify in his/her Whereabouts Filing, for each day in the forthcoming quarter, one specific 60-minute time slot where he/she will be available at a specified location for Testing : see Clause 11.4 . This does not limit in any way the Athlete’s obligation to be available for Testing at any time and place. Nor does it limit his/her obligation to provide the information specified in Clause 11.3 as to his/her whereabouts outside of that 60 ‑ minute time slot. However, if the Athlete is not available for Testing at such location during the 60-minute time slot specified for that day in his/her Whereabouts Filing, and has not updated his/her Whereabouts Filing prior to that 60-minute time slot to provide an alternative time slot/location for that day, that failure shall amount to a Missed Test and shall therefore constitute a Whereabouts Failure for purposes of Code Article 2.4. [11.1.4 Comment: The purpose of the 60-minute time slot is to strike a balance between the need to locate the Athlete for Testing and the impracticality and unfairness of making Athletes potentially accountable for a Missed Test every time they depart from their previously-declared routine. ... After extensive consultation with stakeholders with substantial whereabouts experience, the view was taken that the best way to maximize the chances of finding the Athlete at any time, while providing a reasonable and appropriate mitigation of ‘24/7’ Missed Test liability, was to combine the best elements of each system, i.e. requiring disclosure of whereabouts information on a ‘24/7’ basis, while limiting exposure to a Missed Test to a 60-minute time slot ...]” Under heading 11.3 (“Whereabouts Filing Requirements”), Clause 11.3.1 stated that the athletes concerned had to provide the International Federation or the national anti-doping organisation with the following information: a complete mailing address; details of any disability; specific confirmation of their consent to the sharing of their whereabouts information with other organisations having authority to test them; for each day during the following quarter, the full address of the place where they would be residing (for example, home, temporary lodgings, hotel, and so on); and for each day during the following quarter, the name and address of each location where they would train, work or conduct any other regular activity (for instance, school), as well as the usual time-frames for such regular activities. Clause 11.3.2 provided that the whereabouts information also had to include, for each day during the following quarter, one specific sixty-minute time slot between 6 a.m. and 11 p.m. each day during which the athlete concerned would be available and accessible for testing at a specific location. The comment on this clause stated that the athletes concerned could choose which location to nominate for this sixty-minute time slot: it could be their place of residence, training or competition, or it could be another location (for instance, work or school). A failure to be available for testing at the specified location during the specified time